Realistically, passing the bill is not going to kill the Internet, and defeating it is not going to cost millions of jobs.

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If you tried to access the English-language Wikipedia on Wednesday, you noticed
that for the first time ever it was intentionally blacked out. (If you were
clever, you just accessed whatever you needed through the Google archive.) The
reason was a protest against legislation pending in the United States that
Wikipedia thinks is a threat to the viability of the project. The bill is called
the Stop Online Piracy Act, or SOPA for short, and has generated much
controversy.

The problem the bill is intended to solve is widely agreed
to be serious. The owners of copyrights to books, recordings and movies have the
exclusive right to distribute them, which enables them to get paid for their
creations.

Once upon a time it was pretty easy for them to enforce this
right. Printing presses for books and vinyl presses for records were so
expensive and rare that pirated materials were costly to make, easily traced and
generally low in quality. Digitization plus Internet created the opposite
situation: Perfect copies are virtually cost-free to create and widely
distribute and are very hard to trace.

The first step in the legal battle
against online piracy was establishing that it was in fact illegal. Obviously
the original statutes did not relate to files or to the Internet, which did not
exist when they were drafted.

This was achieved mainly through legal
rulings, such as the Napster case, which established that these sites could be
considered “commercial” use even when they do not charge for the
files.

The next step is to create legal means to effectively fight such
piracy. That has proven to be far more difficult, and SOPA is one controversial
effort.

The main complicating issue is that site operators do not just
announce: “Here is a site with lots of great pirated songs.” They open a generic
file-sharing site, which is good for pirated songs but also for homey YouTube
style clips, cookie recipes, doggerel and what not. When it turns out that 99
percent of the content is copyrighted, the site owners say it is not their
problem; it is between the copyright owner and the infringers, meaning the
people who upload and download the files.

The second complicating issue
is that people locate piracy sites in out-of-the-way jurisdictions with weak
laws or weak enforcement.

As a result, lawmakers concluded that the only
effective legal tool is to sanction very roundabout participation in piracy. A
US site that provides a link to a foreign “pirate site” could be
blocked.

Here’s how roundabout it could get: Person A posts a
presumptively copyrighted song on website B, located in Freedonia. Person C,
perhaps also in Freedonia, posts a link to site B on US website D. Under one
possible interpretation of SOPA, the copyright owner could seek an injunction
against D (though only after taking steps against B). Yet D did not post pirated
materials, did not host them and did not actively link to someone who hosted
them. The copyright owner’s true beef is with A.

To add to the
difficulty, A or B or C sitting in Freedonia may have some claim that would
convince a judge that the post is legal, but A and B and C are not in a US
courtroom – only D is! D can, of course, turn to them and ask them for
exonerating evidence, but they are beyond the reach of US authorities and have
little incentive to provide it.

It is exactly to avoid such roundabout
liability that current legislation includes “safe harbor” provisions that
preclude taking actions against sites that have no active role in infringement
and that take timely action to remove infringing content. The new legislation
would compel websites to be much more proactive in monitoring
infringement.

A related issue is “chilling.” The concern is that sites
would end up going well beyond the letter of the law to avoid getting hauled
into court even if they are sure they would win. It would be easy to seek an
injunction against a site, but even if it is also easy to fight an injunction,
no company wants to spend his time in court instead of trying to improve their
site. Rights owners could bully sites that post even legal content.

The
claims of both sides in the battle are farreaching and likely exaggerated. A
supporter of the legislation, Rep. John Conyers, said, “Millions of American
jobs hang in the balance,” while tech journalist Wayne Rash, on eWEEK.com, said
the bill “could effectively kill e-commerce or even normal Internet
use.”

There could even be a worst-of-both-worlds scenario in which the
legislation hampers legitimate businesses without really making a dent in
illegal activity.

There is no question that the stakes are high on both
sides. But realistically passing the bill is not going to kill the Internet, and
defeating it is not going to cost millions of jobs.

It would be helpful
if someone could get us past the hyperbole and make a preliminary effort at
quantifying the likely true costs and benefits of the proposed new regime.

ethics-at-work@besr.org

Asher Meir is research director at the
Business Ethics Center of Jerusalem, an independent institute in the
Jerusalem College of Technology (Machon Lev).

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